Georgia District Attorneys Divided On Meaning Of New Abortion Law

May 23, 2019

A newly-signed abortion law in Georgia has some district attorneys saying women who have abortions could face criminal charges for their actions. But, others say it's not possible to file charges because of existing statutes and case law, or won't because of prosecutorial discretion.  

A survey of Georgia's 49 elected district attorneys shows a range of reactions to the Living Infants Fairness and Equality Act, which would ban nearly all abortions once cardiac activity is detected in an embryo, usually around six weeks into pregnancy and before many women know they are pregnant.  

 All of them were asked if they would pursue criminal cases against anyone who violates the new state law, and if the new law would allow district attorneys to specifically prosecute women who have an abortion. 
 
Some prosecutors, such as Alcovy Judicial Circuit District Attorney Layla Zon, said that existing Georgia law and the language of the new bill does not open the door to women being prosecuted.  
 
Others, such as Stone Mountain Judicial Circuit DA Sherry Boston who said the LIFE Act "muddies the water" regarding those existing laws, said they will not charge women or the doctors and providers who assist with an abortion. Several district attorneys responded that they will not issue blanket statements for or against prosecutions of those who violate the new law, like Coweta Judicial Circuit District Attorney Herb Cranford, who said he would not "answer a hypothetical."  
 
As of Thursday, 17 district attorneys have responded to requests from GPB News and other news outlets about the law, which will take effect Jan. 1, 2020, if it is not blocked by the courts. The LIFE Act was signed by Gov. Brian Kemp two weeks ago, and will face legal challenges in near future from groups like the American Civil Liberties Union of Georgia. 
 
This story will be updated if and when other district attorneys respond. 
 
ATLANTA JUDICIAL CIRCUIT

In an emailed statement, DA Paul Howard's office said he "does not intend to ever prosecute a woman under the new law. He will continue to follow Roe v. Wade." 
 
COBB JUDICIAL CIRCUIT

Acting Cobb DA John Melvin wrote in a statement that the so-called "heartbeat bill" is well-drafted. Here's his response (emphasis his) to the questions:

Histrionics and various “parade of horribles” aside, women will not be prosecuted in the State of Georgia for murder should they obtain an abortion.

Here are the facts: Georgia has madeperforming an abortion illegal once a heartbeat is detected. There are exceptions: 1) A physician determines, in reasonable medical judgment, that a medical emergency exists; 2) pregnancy is the result of rape or incest in which an official police report has been filed alleging the offense of rape or incest; or 3) A physician determines, in reasonable medical judgment, that the pregnancy is medically futile.

The fact that the State has redefined personhood to include fetus does not now subject women to murder charges. Simply put, the murder statute forbids causing “the death of another human being.” The Legislature could have defined murder as causing “the death of a human being” but it did not. The difference is subtle but important. “A” is an indefinite article and would encompass a fetus under the murder statute if that statute said “causes the death of a human being because a fetus now has personhood status and is “a” human being. But murder uses the adjective another which means “some other, distinct, unique” which implies concepts of viability. As such, because a fetus cannot survive outside the womb, it would not qualify as a “another” human being under our murder statute. 

Of larger concern are prosecutors who indicate that they will selectively prosecute and/or ignore their oath to enforce the laws of the State of Georgia. Prosecutorial discretion is important but that exists within the various statutes. It does not allow Prosecutors to ignore whole cloth the laws that our legislature passes. To do so would violate their oath to enforce the laws as well as their ethical obligations to do the same.

GWINNETT JUDICIAL CIRCUIT

Gwinnett's DA Danny Porter had a succinct response: "My legal opinion is that the answer to your two questions is NO."

MACON JUDICIAL CIRCUIT

DA David Cooke sent the following statement: 

“As District Attorney, I swore an oath to uphold the constitution and I intend to honor my oath. My office will continue its long-standing practice of supporting and protecting women who are in crisis, rather than prosecuting them. I will exercise my discretion not to prosecute women and doctors for exercising their constitutional rights. It’s unfortunate that this law may turn a miscarriage into a crime scene and I will not allow that to happen on my watch.”

 

OCMULGEE JUDICIAL CIRCUIT

DA Stephen Bradley emailed this response:

Neither the District Attorney nor any other citizen, can or should ignore a law.  However, it would be irresponsible to speculate about a case that has not yet appeared.  To my knowledge, there are no facilities in our circuit providing abortion services. In my twenty-five (25) years as a prosecutor I have not seen a case requiring prosecution under this new law.  Nonetheless, as with all matters, if a case is presented to our office we will look at it carefully in light of the law and the facts as they appear at that time.

 

STONE MOUNTAIN JUDICIAL CIRCUIT

DA Sherry Boston has a lengthy response to the measure and why her office will not prosecute women or providers under the new law.

“As District Attorney, I took an oath to uphold both the U.S. and GA Constitutions. And our U.S. Supreme Court,  in deciding Roe v. Wade, determined that every woman has a fundamental right to privacy which protects their right to choose.  I have reviewed HB 481, the related statutes, and case law, and have spoken with members of the Georgia State Legislature.  As a result, I have grave concerns about HB 481, its constitutionality, and what it seeks to accomplish.  This law obviously sets out to criminalize abortion in the State of Georgia.  The question is – who will be held criminally responsible?  The law, as written, is either silent or ambiguous, at best, on this question.
 

Doctors, nurses, anesthetists, health care providers, office receptionists- virtually anyone who either performs or assists in performing or arranging  what is currently a legal medical procedure- could potentially be charged under this statute.  Arguably, under such legal theories as Party to a Crime, Conspiracy and/or Solicitation to Commit a Crime,  even a friend or ride share driver, if he or she knowingly and voluntarily transported a woman to a hospital or doctor’s office for an illegal abortion under this law, could face prosecution.

Further,  the bill does not specifically exclude the woman receiving an abortion from criminal liability.  This could have been easily accomplished by inserting a sentence in this law or by amending other statutes, such as Murder, O.C.G.A. sec. 16-5-1,  to address HB 481.  While analysis of case law and other statutes, such as Feticide, O.C.G.A. sec. 16-5-80, seems to make clear that a woman cannot be prosecuted for obtaining an abortion, this new law muddies the water and may open the door for this type of prosecution.  

There is no language outlined in HB 481 explicitly prohibiting a District Attorney from bringing criminal charges against anyone and everyone involved in obtaining and performing what is otherwise currently a legal medical procedure as decided by United States Supreme Court opinion and precedent.

As District Attorney with charging discretion, I will not prosecute individuals pursuant to HB 481 given its ambiguity and constitutional concerns.  As a woman and mother, I am concerned about the passage and attempted passage of laws such as this one in Georgia, Alabama, and other states.  I believe it is a woman’s right to make decisions regarding her own body and medical care, including, but not limited to, seeking an abortion, as upheld by the United States Supreme Court.”  

EASTERN JUDICIAL CIRCUIT

DA Meg Heap's office declined to comment.

COWETA JUDICIAL CIRCUIT

DA Herb Cranford sent a statement that he would not answer a hypothetical about an abortion case, and notes that the new law will likely interpreted by the courts.

I’m not going to answer a hypothetical. As a prosecutor it is important that my office view each case individually and decide whether and how to proceed on each case based on the particulars of each case. I will say that prosecutors have a great deal of discretion in making those decisions so that we can best serve the public and seek justice.

I’m also not going to offer an interpretation of this law. I’ll wait on the appellate courts to do that. If a law enforcement agency refers a case to me that involves this law before the appellate courts weigh in, I’ll make a decision then.

NORTHERN JUDICIAL CIRCUIT

DA D. Parks White sent a statement that says women could not be charged for having an aborion, and says "selective prosecution of criminal offenses... would lead to chaos."

The obligation of the District Attorney is to pursue justice and enforce the laws passed by the legislature. We take an oath to prosecute the law without fear, favor, or affection. While we all have discretion in prosecution, selective prosecution of criminal offenses, based upon the whim of the prosecutor of which criminal offenses should or should not be enforced, would lead to chaos. In every criminal case, only two things guide our decisions: the facts and the law. In such a circumstance as you have set forth, the provider of the "service," which ended the life of an unborn child, capable of feeling pain, and who has a DNA profile distinct from the mother, would be in violation of the code, and, upon being provided sufficient evidence that probable cause exists to believe that a provider had performed a criminal abortion, my office would present the provider of this "service" to the Grand Jury, the conscience of the community, for their determination of whether or not said provider should be indicted for the offense of Criminal Abortion, and face trial in Superior Court for the same.

White also said there is no way the new law allows women to be charged.

No, it does not. At all. Under any circumstance. It is directed exclusively at providers.

ALCOVY JUDICIAL CIRCUIT

DA Layla Zon sent the following statement:

Elected District Attorneys have a duty to the citizens of their jurisdictions to make determinations on which cases to prosecute based upon facts and not upon political reasons.  I have a duty to uphold the law and as I do with all types of crimes in Georgia, I make decisions on whether to prosecute a case on each set of circumstances individually according to the prosecutorial merit of each case along with consideration of the law.  As to the specific question of whether the statute allows women who get abortions in violation of the law to be prosecuted, I do not believe it does.  

 

CLAYTON JUDICIAL CIRCUIT

DA Tracy Graham Lawson declined to comment, citing a busy schedule.

BLUE RIDGE JUDICIAL CIRCUIT

DA Shannon Wallace is in the camp of prosecutors that will not issue blanket statements about whether to prosecute or not.

It is my sworn duty to enforce the laws of the State of Georgia as written and to uphold the Constitutions of the United States of America and of Georgia.  In reading HB 481 in conjunction with current Georgia law (specifically OCGA 16-5-80, feticide), I don’t believe O.C.G.A. §16-12-140 explicitly authorizes the prosecution of a woman who obtains an abortion.  Rather, I believe it authorizes the prosecution of individuals who perform illegal abortions, i.e. those abortions for which there is no statutory exception. Since I do not believe the law as written authorizes the prosecution of women who obtain abortions, there could not be a prosecution of women who obtain abortions in my jurisdiction.  Further, without the specific facts and circumstances of an actual individual case, it would be improper for me to categorically say that I would not enforce a law of the State of Georgia. My office examines the merits of each and every case we receive on a case-by-case basis.  

 

TOWALIGA JUDICIAL CIRCUIT

DA Jonathan Adams sent this statement:

My job as District Attorney is to uphold the laws of our state and to provide justice for our community. I support the efforts of our Governor and our legislature to protect lives in Georgia. Every criminal case we receive is different and every case will be reviewed on its own merits for prosecution. I do believe there are situations where our office would pursue cases against criminal abortion. The LIFE Act does not target mothers who get abortions under any condition and it also does not target anyone providing abortions in cases of rape, incest or medical emergencies. The new bill, along with the existing code, punishes those individuals administering the abortion. Our office will continue to enforce laws and protect our victims and our community.

HOUSTON JUDICIAL CIRCUIT

DA George Hartwig told 13WMAZ the following:

"My duty is to enforce the laws of the State of Georgia. It would be inappropriate to say that I would not enforce a law (or entire class of laws) enacted by the Legislature and signed into law by the Governor. Cases are always fact specific, and no two are the same. As with all other criminal cases, each case referred to the Houston DA's office charging a violation of this new law will be individually reviewed for prosecutorial merit."

OCONEE JUDICIAL CIRCUIT

DA Tim Vaughn told 13WMAZ the following:

"It would be premature for me to make any pronouncements in regard to this statute. I am sure the Appellate courts will have a lot to say about this statute before any of us are required to make charging decisions. At that time, I will do my best to apply the facts presented to me with law as it has been interpreted at that time."

DOUGLAS JUDICIAL CIRCUIT

DA Ryan Leonard told the Daily Report he thinks women can be charged under the new law.

"They wouldn’t outline exceptions or exemptions if they didn’t anticipate criminal prosecution," Leonard said.  

“Personally, I’m not itching to prosecute people under this law. I don’t think anybody else is either. But I think it’s improper to say, ‘I’ll never prosecute anybody under the law,’” Leonard said. “We don’t have the luxury to say, ‘I don’t like this law and I’m not going to enforce it.’”

FLINT JUDICIAL CIRCUIT

DA Darius Patillo told 11Alive the new law was "unconstitutional."

HB 481 is unconstitutional because it is contrary to the U.S. Supreme Court decision in Roe v. Wade, which is presently the law of the land. This office will not prosecute any woman for decisions regarding her own personal health, nor any physician or other healthcare professional, under HB 481

District attorneys for the Alapaha, Appalachian, Atlantic, Augusta, Bell-Forsyth, Blue Ridge, Brunswick, Chattahoochee, Cherokee, Conasauga, Cordele, Dougherty, Dublin, Enotah, Griffin, Lookout Mountain, Middle, Mountain, Northeastern, Northern, Ogeechee, Patauala, Paulding, Piedmont, Rockdale, Rome, South Georgia, Southern, Southwestern, Tallapoosa, Tifton, Toombs, Waycross and Western Judicial Circuits have not responded to requests for comment.